"This is a case about swinging dicks," wrote Judge Lawrence VanDyke of the U.S. Court of Appeals for the 9th Circuit in March.
asserted
VanDyke → swing → March
"You may think that swinging dicks shouldn't appear in a judicial opinion.
uncertain
dicks → think → opinion
But as much as you might understandably be shocked and displeased to merely encounter that phrase in this opinion, I hope we all can agree that it is far more jarring for the unsuspecting and exposed women at Olympus Spa—some as young as thirteen—to be visually assaulted by the real thing."
uncertain
women → shock → thing
VanDyke was dissenting from the 9th Circuit's decision not to revisit Olympus v. Armstrong, a case that saw an all-female Korean spa sue on First Amendment grounds.
asserted
spa → dissent → grounds
The business, according to the Washington State Human Rights Commission (WSHRC), had broken the law when it declined to accept a preoperative transgender woman.
uncertain
it → accord → woman
This was a problem for Olympus Spa, which requires nudity in its pool area, and whose business model, relatedly, hinges on catering to a single-sex clientele.
asserted
model → require → clientele
In ruling against the business last year, the 9th Circuit acknowledged the thorniness of the case.
asserted
Circuit → rule → case
"We are not unmindful of the concerns and beliefs raised by the Spa," wrote Judge M. Margaret McKeown.
asserted
McKeown → raise → Spa
"Indeed, the Spa may have other avenues to challenge the enforcement action.
uncertain
Spa → have → action
But whatever recourse it may have, that relief cannot come from the First Amendment.
uncertain
relief → have → Amendment
Olympus Spa is now taking its case to the Supreme Court.
asserted
Spa → take → Court
McKeown and VanDyke, whose vulgar approach elicited a rebuke from 27 of his colleagues, may appear irreconcilably at odds.
uncertain
approach → elicit → odds
Yet the rival sensibilities also help paint a more complete picture of a complicated case, one that naturally provokes strong reactions but for which there may be no immediately satisfying answer under the Constitution.
uncertain
that → help → Constitution
The ordeal traces back to 2020.
asserted
ordeal → trace → 2020
Haven Wilvich, who has identified as a "nonbinary trans woman," lodged a complaint with the WSHRC after being turned away from the Olympus Spa location in Lynnwood, Washington, for having a penis.
asserted
who → identify → penis
(The spa says it accepts postoperative transgender women.)
asserted
it → say → women
The Washington State Law Against Discrimination (WLAD) bars discrimination based on many characteristics, including sexual orientation, which the state defines as encompassing "heterosexuality, homosexuality, bisexuality, and gender expression or identity."
asserted
state → bar → heterosexuality
Olympus entered into a settlement with the WSHRC in October 2021.
asserted
Olympus → enter → October
It later sued, alleging the enforcement action violated the owners' First Amendment rights.
asserted
action → sue → rights
It did not succeed.
asserted
It → succeed → ?
The government's "objection to [Olympus Spa's] entrance policy was not based on 'disagreement with the message it conveys,'" the 9th Circuit wrote in May 2025, "but rather with the practice it described—a practice that was unlawful under WLAD."
uncertain
that → base → WLAD
Washington had approved "an expansive definition" of the term "sexual orientation," the court noted.
asserted
court → approve → term
"The Spa did not challenge this definition or the language of the statute," it wrote, "nor did it argue that the statute was vague or that the Spa's conduct did not fit within the statute's definition of discrimination on the basis of gender expression or identity."
asserted
conduct → challenge → expression
All in all, Olympus Spa "simply did not challenge the statute itself," the majority said, "and it is not our role to rewrite the statute."
asserted
it → challenge → statute
The business's petition to the Supreme Court partially recommits to its initial approach.
asserted
petition → recommit → approach
"The Spa is a cultural institution…founded to transmit and preserve centuries-old Korean communal bathing traditions in an intimate, sex-separated setting, consistent with its owners' cultural and religious heritage," write attorneys for Olympus Spa, which is represented by Alliance Defending Freedom and Pacific Justice Institute.
asserted
which → found → Freedom
"The Spa's mission of spiritual renewal and cultural expression qualifies it as an expressive association, and the forced inclusion of nude males impairs the association's mission.
asserted
inclusion → qualify → mission
"Generally speaking, the [Supreme] Court has been reluctant to allow businesses to say, 'We get to associate with whomever we please,'" Eugene Volokh, a specialist in First Amendment issues and a law professor emeritus at UCLA, tells me.
asserted
Volokh → speak → me
"That would spell, at least, if not the end of anti-discrimination law, at least very broad challenges to anti-discrimination law…
asserted
That → spell → law
.As a libertarian matter, one could argue that there should be such a right, but the Supreme Court has repeatedly rejected any such claim."
uncertain
Court → argue → claim
That comports with the 9th Circuit's ruling, in which McKeown wrote that classifying a nude spa in such a way "would stretch the freedom of association beyond all existing bounds.
asserted
classifying → comport → bounds
More consequential, however, is that the spa expands into another area: religious exemptions.
asserted
expands → expand → area
The owners are Christian, and, per the petition, "hold the religious conviction that men and women should not be unclothed together unless married to each other."
asserted
men → hold → other
The government should therefore make an exception, they say.
asserted
they → make → exception
That is still not a surefire win, particularly when considering how unsettled and contorted the case law is on the subject.
asserted
law → consider → subject
But it is for that same reason that the Supreme Court may be willing to take up the petition.
uncertain
Court → take → petition
Core to the spa's argument is that WLAD carves out an exemption for exclusive private clubs, like fraternal organizations, which select members based on certain criteria.
asserted
which → carve → criteria
Olympus Spa does not contend that it is a private club.
asserted
it → contend → ?
So to advance this, its petition relies heavily on a 2021 Supreme Court decision, Tandon v. Newsom.
asserted
petition → advance → Newsom
In that case, the justices said California's COVID-19 restrictions on at-home gatherings were unconstitutional, because the state's haphazard approach had ultimately made it more difficult for activities like in-home Bible studies to take place than, say, shopping at retail stores.
asserted
activities → say → stores
…and 20 more, not listed.
The Aporia
